Last Tuesday, the Eleventh Circuit Court of Appeals issued its opinion in the Farias-Gonzalez case, which originated in a metro-Atlanta area of DeKalb County, Georgia. Judge Cox wrote for the Court, which held that identity-related evidence is not suppressible when offered in a criminal prosecution only to prove who the defendant is. The opinion is available here.

In 2006, Mr. Farias-Gonzalez was working on his car in DeKalb County, Georgia when a couple of federal immigration agents saw his tattoos and suspected he might be in a gang. After Mr. Farias-Gonzalez told them that he was not affiliated with any gangs, one of the agents lifted his sleeve to get a better look at his tattoos, then asked him for ID. He gave them three forms of identification identifying himself as Norberto Gonzalez. They took his picture and then ran a check on Norberto Gonzalez, finding no records associated with that name and the birth date on the ID. Concluding he may be in the country illegally, they fingerprinted him on a portable electronic machine. That machine identified him as Jose Farias-Gonzalez, who had previously been deported from the United States.

The District Court found, and on appeal the Eleventh Circuit assumed for the sake of argument, that the agents committed an unconstitutional search and seizure when lifting Mr. Farias-Gonzalez’s shirt sleeve. In the usual case, all evidence found as a result of an unconstitutional search would be excluded from use at trial. In this case, however, where the evidence was offered only to prove who the defendant was, the Court determined that the social costs of excluding the evidence were too great.

The exclusionary rule is one of the most important rules in criminal law. It is a legal technicality that protects all of us, guilty and innocent, from federal and state police misconduct. The rule prevents prosecutors from using evidence that is found in violation of the defendant’s constitutional rights. Because the rule makes the cost of a constitutional violation so high, it deters police from ignoring the rights that we fight so hard to protect.

The exclusionary rule applies only where its deterrence benefits outweigh its social costs. In the Farias-Gonzalez case, the Court weighed the societal costs and deterrence benefits of applying the exclusionary rule to Mr. Farias-Gonzalez’s photographs and fingerprints. The Court found that the deterrence benefits in this case were minimal because identity evidence is freely obtainable and the prosecution could re-indict as soon as the charges are dropped.

The Court noted the argument that, without the deterrence effect of the exclusionary rule, immigrants would be subject to rampant violations, but the Court rejected that argument hastily, saying that civil lawsuits will provide sufficient deterrence for constitutional violations. We disagree. Sovereign immunity is a significant bar against those civil suits. In addition, many immigrants do not have the means to bring those lawsuits, let alone the knowledge that any rights were violated. Deported defendants face still more considerable barriers.

Furthermore, although the deterrence benefits in this particular case were minimal, the exclusionary rule could prevent much more substantial violations than the lifting of a sleeve. Although police may freely obtain fingerprints from persons they meet on the street, police are now less deterred from unconstitutionally stopping vehicles with no probable cause or reasonable suspicion of criminal activity, simply to obtain the fingerprints of the occupants. They are less deterred from unconstitutionally entering homes without consent in hopes of fingerprinting illegal immigrants. They may find illegal immigrants that way, but they also may find legal immigrants and American citizens who have done no wrong.

Because police are now less deterred from violating your rights and mine, we hope that the United States Supreme Court takes this case and reverses it. The deterrence benefits of the exclusionary rule, even for only identity-related evidence, are far too important and our constitutional rights are far too valuable to sacrifice for the sake of finding a few more illegal immigrants.